Saturday, July 30, 2011

Who Cares About LGBT Workers?

The Employment Non-Discrimination Act would prohibit employers from discriminating on the basis of sexual orientation or gender identity. ENDA has been introduced in Congress multiple times, but it has never passed. While federal law prohibits discrimination on the basis of sex, race, and other categories, it does not address sexual orientation or gender identity. Furthermore, only a handful of state law prohibit employment discrimination on the basis of gender identity and sexual orientation. In most states, such discrimination is perfectly legal.

Although LGBT workers remain vulnerable to discrimination across the nation, ENDA has not received much attention from the media and from many groups that advocate for LGBT rights. Instead, same-sex marriage and the repeal of Don't Ask, Don't Tell have occupied most of the recent headlines and have dominated the contemporary advocacy of LGBT social movement organizations.

While supporters of same-sex marriage often point to the economic benefits associated with marriage, ENDA would also potentially improve the economic situation of LGBT individuals by reducing their exposure to workplace discrimination. Furthermore, DADT is a classic example of employment discrimination. But, while DADT only focuses on military service members, ENDA would end discrimination on the basis of sexual orientation and gender identity among most employers nationwide. Logically, if same-sex marriage and the repeal of DADT are valuable elements of LGBT rights, then ENDA is equally (or even possibly more) valuable. Nevertheless, it remains on the back burner.

LGBT People and Employment

Two recent studies demonstrate the importance of ENDA to LGBT rights. Both of these studies report the experiences with discrimination of LGBT. The first study, released by the Center for Work Life Policy, shows that 48% of self-identified LGBT college educated professionals remain closeted in the workplace. During an interview with NPR, Karent Sumberg, an economist who conducted the research, stated that most of the closeted individuals expressed fear of career reprisals as the reason why they hid their sexual orientation and gender identity.

In addition, the Williams Institute, a research center on sexual orientation and gender identity at UCLA, recently released a study which concludes that about one-fourth of LGB (not "T") workers report experiencing job discrimination or harassment based on sexual orientation in the past year. Among transgender individuals, the number was a staggering 78%. The Williams Institute, like the Center for Work Life Policy, also concludes that significant numbers of LGBT individuals remain closeted at work. Furthermore, the study reports the findings of prior studies (on this issue, the work of economist Lee Badgett is the most prolific), which demonstrate that LGBT individuals tend to earn less and face greater rates of unemployment than similarly situated heterosexual and gender-conforming individuals.

Why So Little Attention on ENDA?

Despite this research, most of the nation's discussion of LGBT rights has focused on DADT and same-sex marriage. The impact of workplace discrimination, however, is very wide ranging, and it undoubtedly affects poor individuals, women and persons of color in the LGBT population even more dramatically. With all of this evidence, the lack of attention to ENDA is both perplexing and disturbing.

If employment issues are so important to LGBT individuals, why do social movement organizations that advocate LGBT rights spend so much of their time on marriage and military concerns? It is hard to document the reasons, but the following arguments present potential explanations.

First, marriage and the military provide symbolic value in US culture. If LGBT people obtain access to these institutions, advocates believe (rightfully or wrongfully) that they will have shifted the very terrain of LGBT rights discourse. Some commentators, like Andrew Sullivan, have argued that this would complete the entire mission of LGBT equality (in his book Virtually Normal).

The lack of attention to employment discrimination could also result because people who dominate mainstream LGBT social movement organizations live in jurisdictions that prohibit sexual orientation and gender identity discrimination by employers. Because they are not vulnerable in their own workplaces, this issue may seem less important to them.

Furthermore, as LGBT critics have long observed, many of the people who direct the advocacy of LGBT social movement organizations have relative privilege in society (based on gender, race and class). As a result, they do not have to worry about job losses as much as more vulnerable persons within the population of LGBT individuals.

Although the foregoing arguments might explain the relatively lower priority given to ENDA among some LGBT social movement organizations, they cannot excuse reducing ENDA to obscurity. Class issues matter for LGBT individuals. Economic concerns exist outside of marriage. And job security is a concern for civilian LGBT workers. Based on the most recent research and the unprotected status of LGBT workers in most states, the passage of ENDA should receive far more attention from the media and from LGBT social movement organizations.

About Me and the Blog

Professor Darren Hutchinson teaches Constitutional Law, Remedies, Race and the Law, and a Civil Rights Seminar at the University of Florida Levin College of Law. Professor Hutchinson also holds the prestigious Stephen C. O’Connell Chair.
Professor Hutchinson received a B.A. from the University of Pennsylvania and a J.D. from Yale Law School. Before teaching law, Professor Hutchinson practiced commercial litigation at Cleary, Gottlieb, Steen and Hamilton in New York City. He also clerked for the late Honorable Mary Johnson Lowe, a former United States District Judge in the Southern District of New York.
Professor Hutchinson's research has appeared in many prestigious journals including the Cornell Law Review, Washington University Law Review, UCLA Law Review, University of Michigan Journal of Race and Law, and University of Pennsylvania Journal of Constitutional Law.
He has also presented his research at numerous universities, including Yale, Stanford, Columbia, University of Pennsylvania, University of Michigan, University of California at Berkeley, University of Virginia, Cornell, Georgetown, and Boston University.

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